Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents


Mental Disorder: Statutory Defence s 16



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Mental Disorder: Statutory Defence s 16


Consider after parsing and commenting AR and MR.

If proved NCRMD will be directed to health review board

Trier of fact faced with NCRMD defence should consider questions in the following order:
1) Has the accused established NCRMD under one of the two limbs of s. 16 BoP? IF NO→
2) IF IT IS A SPECIFIC INTENT OFFENCE [one that requires intent of consequence]Does the evidence of mental disorder nevertheless negate mens rea in whole or part (e.g. prevent D from forming specific intent/ intending consequences)? That is, does it raise a reasonable doubt doesnt have to be a great doubt...just SOME DOUBT?

  • Ex: person has severe depression but still understands the quality of the acts. They were capable to form the intention to act but not capable of forming the intention for the natural consequence of the act…this might displace the presumption from theroux and sansregret that a person naturally foresees the consequences of their act

Presumption and Burden of Proof


S. 16(2) establishes a presumption that A is not suffering from a mental disorder (until the contrary is proved to BoP). *Contravenes Charter s. 11(d) due to the reverse onus. But justified under s. 1 per majority in Chaulk (1980 SCC). Oakes Test: The measure of displacing burned of proof makes sure it is only accessible to those that actually suffers from a MD; impairs right no more than necessary; it is proportionate to end being sought.

S. 16(3) places burden of proof on party that raises the issue (must prove on Balance of Probablities=50%+). This is because there are cases that Crown may want to raise the defence. BUT, usually it is the accused. (not AOR)

AS YOU GO THROUGH EACH ELEMENT OF THE DEFENCE: COULD THE CROWN DISPROVE THIS ELEMENT BRD (Lifchus close to abs certainty)? ANTICIPATE COUNTER ARGUMENTS

Test for section 16


TEST FOR SECTION 16 (1)

(1) A commits an act or omission



(2) while suffering from a mental disorder

  • “While suffering from a mental disorder” Cooper (1980 SCC):  “any illness, disorder or abnormal condition which impairs the human mind and its functioning. It excludes self-induced intoxication, as well as transitory mental states ”

(3) mental disorder must have rendered (A would not have acted BUT FOR MD) the person to b incapable of (a) appreciating the nature and quality of the act OR

  • Incapable” (Chaulk 1990 SCC): “a purely subjective and personal dimension of the individual.” “Rendered”= incapacity must be causally linked to the disease of the mind

  • Incapable of appreciating the nature and quality of the act” Cooper (1980 SCC): this requires perception “an inability to perceive the consequences, impact and results of physical act”. 

(b) Incapable of knowing that it was wrong.

  • “Incapable of knowing that it was wrong” (Chaulk 1990 SCC): incapacity to appreciate that the act is wrong according to the ordinary moral standards of reasonable members of society.  That is, even if the accused knew that the act was legally wrong, he may be acquitted if he was incapable of understanding that it was morally wrong.

    • Chaulk overruled previous holding in Schwartz (though this should be narrowly construed; if A had capacity to understand that the act was legally wrong, s/he could not access the defence

    • Scenarios (Chaulk)

      • 1)     A knows act is legally wrong + knows most ppl would condemn actions & he should follow law (GUILTY...NO S16)

      • 2)     A doesn’t know it’s legally wrong + knows most ppl would condemn actions (GUILTY...NO S16—ignorance of law no excuse)

      • 3)     A doesn’t know contrary to law + does not know ppl would condemn actions (NCRMD, obviously)

      • 4)     A knows legally wrong + does not know that ppl would condemn actions & that that he should follow the law (NCRMD. This is the contentious scenario & was where Chaulk & Schwartz disagreed. Schwartz said not NCRMD, but Chaulk says that if accused knows it’s legally wrong, but don’t follow due to MD (e.g. higher power told you so), A should be acquitted

If A CAN PROVE ON BoP then A will be found NCRMD and will be discharged to the mental health review board.

IF s 16 doesn’t apply, does the evidence of mental disorder negate nevertheless mens rea in whole or part (e.g. prevent A from forming specific intent/intend consequence for murder)?

    • That is, does it raise a RD?

    • This would be where A doesn’t have a mental disorder sufficient for the defence but is enough to raise a RD about specific intent.

    • If not…GUILTY



6. Relationship between mental disorder and automatism





Mental disorder

Automatism

Requires disease of the mind

No disease of the mind required

Mental disorder automatism (where actus reus is denied)

Non-mental disorder automatism

Verdict is not criminally responsible by reason of mental disorder

Verdict is acquittal

May be detained in hospital if board concludes that A is a significant threat.

No continuing supervision but the possibility of a peace bond or civil commitment arises.




  • Where both automatism and automatism by mental disorder apply, use s. 16 (Stone).


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